John is one of the UK's leading personal injury solicitors, with over 28 years of experience. In addition to his role as Director of Spencers Solicitors, he is an advocate for claimant rights and believes that wholesale reform to the personal injury arena is needed to ensure transparency, access to justice and the protection of injured people. In this blog, John writes regularly about these issues.

Friday, 5 December 2014

I was prompted to put pen to paper because of what I've seen happening in the personal injury sector and society at large. My premise is a simple one: our society is rife with unethical conduct, and it occurs to the detriment of everyone.

In the personal injury arena, we've seen all manner of shoddy practices in recent years, from referral fees and backhanders to cynical insurer-driven spin to the effect that we are plagued by a 'compensation culture' (a palpable myth) and that whiplash, a painful and debilitating condition, doesn't exist. These things have exercised me but so too have wider societal problems.

For example, as we sit down to watch - or avoid - the latest series of The Apprentice, can we really believe that its contestants and their greed-driven egos are a good thing? In sport, why do we continue to condone cheating, as if the player who 'takes one for the team' is a shining exemplar of how to behave? In politics, the Nolan Principles, which put a premium on selflessness in the interest of the public good, are too often AWOL, as is also the case when it comes to ethics in the worlds of big business, banking, the media and police conduct.

But for all that the latest outrage inevitably prompts calls for a new set of laws, we rarely need them. As is illustrated by the phone hacking scandal, a raft of perfectly sound laws exist to criminalise rogue journalists' behaviour; their lack of ethical scruple meant that they chose to ignore the law.

"Integrity has no need of rules", said the French writer Albert Camus. He is right. We don't need a barrage of extra red tape but we do need a re-commitment to behaving ethically.

I hope that The Importance of Being Ethical prompts, in some small way, a re-engagement with doing the right thing.

Wednesday, 23 July 2014

Hats off to Germany. They were the best side throughout the World Cup, and deservedly won what has to have been one of the best tournaments to date. There were some extraordinary games in Brazil between 12 June and 13 July, not least the eventual winners 7-1 thrashing of the hosts. Other classics were Nigeria 2, Argentina 3 and Germany 2, Ghana 2, though of the England team, perhaps the best thing to do is say that young players like Raheem Sterling and Daniel Sturridge showed that we might just have a decent future.

But if Brazil 2014 will go down in history as a great and memorable World Cup, it could have been etched in our minds for the wrong reason. I refer not to what might have happened if Luis Suarez had longer teeth, but to the scant understand shown by match officials and administrators of the dangers of head injuries.

Potentially terrible consequences

Three serious incidents occurred in Brazil which could have had terrible consequences for the players involved. The first came when Uruguay beat England 2-1. Álvaro Pereira, the Uruguay defender, was knocked out in a collision with Sterling's knee. As The Times reported: "The Uruguay medical team were seen calling for his substitution, only to be overruled by the player, underlying their helplessness as occupational health physicians."

Next came Argentina's semi-final win over Holland. The superb Javier Mascherano clashed heads with Georginio Wijnaldum towards the half hour mark and showed clear signs of concussion, wobbling on his feet before slumping to the pitch. In spite this, he was allowed to play on.

Then came perhaps the worst incident of all, played out for all the world to see in the final. Christoph Kramer found himself in Germany's starting line-up (making his competitive debut for his country) after an injury in the warm-up to midfielder Sami Khedira. Early into the game, the young player's head smashed accidentally into an Argentinian player. Kramer was visibly disorientated, but was allowed to play on by Germany's medical staff. Fourteen minutes later, he fell to the ground, and was then substituted.

Boorish Lawrenson

Kramer has subsequently said that he couldn't remember anything of the first half the game. He looked awful as he left the pitch, eyes glazed and with a look of 'where am I and what is happening?' etched all over his features. His departure made for a telling counterpoint to the boorish, old-school tough guy commentary of the BBC's Mark Lawrenson, who was persistently sarcastic at players' injuries throughout the tournament and objected to the Argentinian players calling - sportingly - for the ball to be put out of play when Kramer lay stricken. Lawrenson further demonstrated an apparent ignorance of what happens with head injuries when saying, as Kramer groggily waited to come back on, "He's fine. He's jogging round the pitch now."

Thankfully, albeit that he was taken off looking anything but fine just under quarter of an hour later, Kramer does seem to be fine. So, too, was Tottenham goalkeeper Hugo Lloris, despite playing on after a head injury last November. Likewise, we hope, Pereira and Mascherano.

But here's the rub: when it comes to head injuries, we just don't know what damage may have been done. And a minute or two of pitchside assessment, when a player has been knocked out or is as visibly awry as Kramer, is woefully inadequate.

Fifpro, the world players' union, has rightly criticised Fifa for failing to protect the players upon which its tournament depends. The union predicts "a tidal wave [of compensation claims] that will engulf" professional football, unless a protocol regarding concussion is adopted as part of the rules of the game. Radically, and yet sensibly, Fifpro also calls for a review of the laws of the game to compensate a team if it goes down to 10 men while a head injury is being assessed.

Prevention is better than cure

And assessment is crucial. We don't want professional football to end up like the NFL in the United States, or the NHL, where significant class action litigation over head injuries is now a fact of life. Not because of bogus objections to people suing for compensation, but because we don't want to see people needlessly injured. The fact is that a head injury can be fatal; it can lead to Second Impact Syndrome, when a later blow on top of the first one leads to brain damage or death.

Proper attention to head injuries is vital. It is essential that Fifa and the game's national governing bodies around the world take action to ensure that prevention is better than cure - for the fundamental reason that when it comes to a head injury, there may well not be a cure.

Let's give thanks to the continuing recovery of Christoph Kramer and his colleagues - and pray that a professional football match is not one day the scene of a fatal head injury because of governing body negligence.

Tuesday, 24 June 2014

Turning 40 isn't always a welcome event. We tend to lament the formal entry into middle age and, in some cases, deal with it in a curious way - perhaps going and buying a Harley Davidson motorbike, or setting off to climb Mont Blanc. Some of us even deny that turning 40 has happened.

But this year, a 40th anniversary should be applauded and publicised as much as possible. Granted, it's not a human one. I'm referring, though, to something created by human beings and made into the law of the land: the Health and Safety at Work Act, 1974.

The Act received the Royal Assent on 31 July 1974. For all that the redtops insist on running stories bemoaning the 'nanny state' and claiming that it's a result of this piece of legislation, they're wrong. The Health and Safety at Work Act has changed our lives immeasurably for the better.

Before the Act came into being, fatalities to employees covered by the legislation then in place stood at 651. Hundreds of thousands of people were being injured. But last year, as this piece from the Telegraph reports, the number of fatalities at work was down to 148 and non-fatal injuries have dropped by more than 75 per cent. This is a result of the Act and, indeed, the actual reduction may well be greater: back in the early seventies, data for sectors not covered by health and safety law was not collated.

A Duty for all employers

The Act places a duty on all employers 'to ensure, so far as is reasonably practicable, the health, safety and welfare at work' of all their employees. Among its provisions, the Act requires employers to ensure the safe operation and maintenance of the working environment, plant and systems; the maintenance of safe access and egress to the workplace; the safe use, handling and storage of dangerous substances; that there is adequate training of staff to ensure health and safety; and that there is adequate welfare provision for staff at work. Safety procedures must be displayed for all to see, proper training given, adequate protective clothing worn and risk assessments made. All risks must be controlled and monitored.

All this is profoundly sensible. Thanks to the law putting these duties on employers it is likely that the Act has reduced deaths by 5,000 or more. Health and Safety Executive Chair Judith Hackitt summed up the effect of the Act well, writing, in January:

"This year will mark 40 years since Health and Safety at Work Act received Royal Assent. Arguably it is one of the best pieces of legislation on the statute books - although we know it is often misunderstood and misinterpreted. It has protected millions of British workers, and driven sharp reductions in incidents of occupational death, serious injury and ill health."

Creation of the Act

The Act came about as the result of the recommendations of the Robens Committee, which reported in 1972. It concluded that the existing workplace safety legislation was too complicated and confusing, with about 30 Acts and 500 sets of regulations. Lord Robens proposed a simplified structure, the primary intention of which was to ensure that the highest standards of health and safety at work were met.

Intriguingly, Lord Robens did not cover himself in glory in 1966, when the Aberfan disaster happened. Then, at 9.15 am on Friday, 21 October 1966, a Welsh community was devastated when a waste tip slid down a mountainside. Colliery waste, liquefied by underground springs, killed 144 people, 116 of whom were children. Lord Robens, then the Chairman of the National Coal Board, took a full 36 hours to arrive at Aberfan, preferring first to attend his investiture as Chancellor of the University of Surrey. Robens' subsequent behaviour over Aberfan was scheming and cynical, as revealed by Professor Iain McLean and Martin Johnes in their excellent book, published in 2000, Aberfan: Government and Disasters.

Perhaps Robens' conscience helped him later urge the enactment of the Health and Safety at Work Act? I am not sure, but I do know that the Act is a 40-year-old that we should celebrate.

Thursday, 19 June 2014

The legal profession has been able to advertise since 1986. What was first a case of crossing the Rubicon for an instinctively conservative profession was quickly embraced and is now widely practised. But the Legal Services and Punishment of Offenders Act 2012 (LASPO) makes it more important than ever to advertise effectively.

This article focuses on digital media and how traditional promotional methods should work in tandem with digital technologies to reach more clients, concluding with an examination of how to monitor and measure the success of work generation strategies.

John Spencer draws on his own experience over the past 30 years, and especially since the autumn of 2011- during which period the author rebuilt his practice from one which depended exclusively on referral fee based sources of work to one which, in 2014, generates 70% of its work directly rather than from referrals.

The legal and professional framework

Since 1986 it has been possible for Personal Injury (PI) practices to advertise, but with the implementation of Legal Aid Sentencing and Punishment of Offenders Act 2012 on April 1, 2013, the necessity to market well and effectively has been brought home with renewed force. Indeed, in today's legal services landscape, to ignore marketing imperatives would be tantamount to commercial suicide. The welter of change to which the PI sector has been subject is as well-known as it is dramatic, involving the introduction of qualified one way costs shifting, the removal of recoverability of success fees and ATE premiums, the increase of 10% in general damages, a greater emphasis on proportionality of costs and the extension of fixed costs, as well as fundamental changes to the court's approach to case management and costs budgeting. Aside from all these factors, arguably it is the ban on referral fees (LASPO ss.56-60) which brings about the greatest challenge for firms having to 'self-generate' work for the first time.

This article does not focus on ways to circumvent the referral fee ban through one of the avenues available, whether by forming an alternative business structure (ABS) or embarking on a joint venture through an ABS, or through arranging for the provision of 'information' which would enable the recipient to provide relevant services to the client through the client him or herself, or indeed through other methods.

Instead, it focuses on how to generate work directly through other marketing techniques. But aside from the referral fee ban, what are the relevant regulatory provisions that practitioners need to have in mind?
In marketing, as in all areas of practice, the 10 mandatory principles in the SRA Code of Conduct are pertinent and form an overarching framework for practitioners. Principles most relevant to marketing are to act with integrity, not to allow independence to be compromised, to act in the best interests of each client and to behave in a way that maintains the trust the public places in the legal profession as a whole.

In addition, practitioners must comply with their legal and regulatory obligations. Outcomes from this part of the Code include ensuring publicity is not misleading, that charges are clearly and unambiguously expressed, and that unsolicited approaches in person or by telephone to publicise practices are avoided.

Taking code compliance as read, how should firms proceed to plan their work generation strategies?

Ethos and focus

Each practice should ensure that it has a clear position, established through focusing first on its clients and developed through engagement with all those working in its business. This will form the backdrop to the practice's business plan generally and specifically its business development plan. Never is it more important to have clarity in positioning than when communicating with the public. An established, clearly defined firm ethos will help establish priorities, for example whether the emphasis is local or national and which categories of injured persons and liability types are in focus (and in what order of priority). The ethos and targets will inform communication and advertising as will ancillary choices such as those with regard to sponsorship.

Existing clients are a goldmine of information. For instance they will inform the importance of reliable ancillary advice and home visits, as well as the sorts of information that injured people would like to be able to access through a firm's website. What questions they have, and in what level of detail they would like answers, can all help identify changes and enhancements to assist clients and potential clients. Clients will also reveal what matters most to them, perhaps the importance of their local community, and other issues which they see as a high priority. Each practice will have different dynamics to consider and will make different choices, but it is vital that there is this kind of engagement with clients. It is an ethical as well as a commercial mistake not to do this.

Traditional media

Traditional media should not be ignored, and the mix of media used will vary according to budget, locality, ethos and preferences. Digital resources simply provide new and more powerful ways of promoting a practice. There is still need to create written articles and comment, engage in conferences and be involved in and known around your community. Just as personal folders in Microsoft Outlook replace paper files, so the internet supplies the foundation for a relatively new and extremely powerful communication tool.

There remains the need have to have something to communicate which is consistent with the chosen ethos and focus and it must be credible. This remains core material for practices which now can reach so many more through digital technologies.

Moving away from referred work means that advertising in all its forms becomes vital. Through newspapers, radio and even TV, each practice will cut its cloth according to its budget taking account of its target audience. Consistency and core values become even more important here to ensure that practices are consistently presented; ideally, nothing should ethically jar.

Digital media

Digital applications are the single most powerful tool with which businesses can communicate today. Referring to IT in his latest book Tomorrow's Lawyers, Richard Susskind states:

"IT is now pervasive in our world. There are over 2.2 billion Internet users … and every two days, according to Google's Eric Schmidt, 'we create as much information as we did from the dawn of civilisation up until 2003'."

Website

The website is the shop window of a practice and it must be right. If the shop window is wrong, people will not visit. The ethos, approach and philosophy need to be accurate and therefore credible and clearly explained. This needs to be consistently presented across all aspects of the website. Services need to be clearly explained, contradictory services should be avoided; if this is not the case there needs to be a focus on something other than service type to avoid contradiction. For example, a practice specialising in both claimant and insurer PI work may have a core value around excellent and fearless professional representation whatever the issue at stake, whereas an exclusively claimant practice can take a more unequivocal claimant-campaigning position if it so chooses. Visitors to sites need to be comfortable with where they have landed, and confident they will be well looked after. Advice needs to be relevant, clear and concise.

Moreover, potential client visitors landing need to be converted to be clients. Technologies like conversion analytics and heat maps to show where visitors tend to focus can help inform where an invitation to provide instructions might be most effective; it will also reveal areas of lesser interest to visitors. To most visitors external accreditations and kite marks are important, as are (perhaps more surprisingly) photographs of premises.

Pay per click

Pay per click is a method of advertising on a search engine when a user types in a certain phrase. But unlike most other forms of advertising payers only pay for the click once someone has interacted with it.

Pay per click became very expensive in the immediate aftermath of the referral fee ban in April 2013.
Prices have settled somewhat but it remains expensive and each enquiry generated through pay per click may cost several hundred pounds or more. Pay per click is a bidding process where quality and price are relevant. If a practice is perceived to be of greater 'quality' it will pay less for a search term. This is another reason for firms to invest time and resource in optimisation in that it will improve its quality rating and consequently reduce the cost of pay per click. To increase scale will also reduce the cost of pay per click. However, I focus on quality in looking at optimisation.

Search Engine Optimisation (SEO)

In the United Kingdom, Google has 88% of the search market, with its closest competitor Bing/Yahoo having around a combined 10% of the rest. In the United States, Google is less dominant, having around 70% of the market. Maximising the impact of a practice through optimisation when people use search engines is important, especially so with Google given its dominant market share.

While pay per click advertising can get services onto Google, the majority of the content on the results page is still made up from organic listings. Organic listings appear on merit and what Google judges to be the most relevant content for what a web user is searching for.

Optimising content to try to rank higher in search-engine owner results, known as Search Engine Optimisation (SEO), is a long-term project, whereas pay per click provides quick and early wins. A practice can also calculate fairly accurately, once its strategy is established, what its pay per click spend will yield in terms of enquiries; this is not so with SEO. SEO is about quality content, and refreshing, reviewing and continually working to improve the number of visitors received. For a successful SEO strategy it is important to engage as many people working in an organisation as possible in the process. There are different challenges with pay per click: it is expensive, and the lower the perceived quality of content the more expensive it is.

There are, however, dangers with SEO and organic listings. Search engines like Google are becoming increasingly strict. They want genuine websites that offer the most value and relevance, and without any manipulation. They regularly develop and change their algorithms (the rules which the search engine uses in order to rank pages), and are making concerted efforts to eradicate manipulation. Constant vigilance is required to avoid falling foul of their policing through optimisation strategies. In essence, optimisation must be genuine rather than seeking to enhance reputation falsely - which is what the search engines are trying to prevent.

Search engine policing

As stated earlier, Google is the overwhelmingly dominant search engine, and for this reason I use it as an example. However, the principles in operation will equally apply to other search engines.

Google monitors approximately 200 signals from web pages when deciding how to rank them in its results. This process is largely done automatically and algorithmically by constantly trawling web pages to determine which is the most relevant to display in relation to users' searches.

In theory, this means that pages which are the most relevant and offer users the most value will rank above those that offer less. Google details its ranking principles in its Webmaster Guidelines which sets out how pages should be built in order to provide users with the best experience.

But as with any rule, there are those who will seek to bend and even break them. For this reason, a large part of the guidelines relate to 'Quality Guidelines'. If a website breaches them then the practice will run the risk of a Google penalisation.

Google can and does take manual action on websites where it spots anything untoward, either with regard to unnatural links or otherwise trying to 'trick' Google or its users. Examples would be websites that hide text, that copy content from other websites or generally try to deceive users.

There have been a number of solicitors' practices which have been delisted following action by Google.

Attempting to manipulate these links can result in severe penalties and manual action.

Complying with search engine guidelines

The SEO agency needs to be trusted implicitly. Due diligence and referencing is essential. Practice members need to speak to the agency and those people specifically allocated to its account. A firm needs to share its plans and hear its agency’s ideas and vice versa. There needs to be clear understanding of the practice ethos and business. Practices need to be satisfied that their agency’s ethics are sound. Return on investment needs to be evaluated and understood. It needs to be known how the agency intends to raise profile online; if any of this sounds like it is easy or too good to be true then it probably is.

Offers may be received from websites or agencies wanting to sell links to the firm's website, blog or even promising more followers on Twitter and Facebook. Many of these are trying to exploit search engine algorithms and if their covert efforts are discovered it will be apparent that they have done more harm than good.

There are organisations which operate solely to sell advertising on a so called 'churn and burn' basis.

These organisations set up a suitably and appositely named website and then set about selling sponsorship to firms, businesses and individuals who will be interested in instructions or workflow from such an organisation. However, the reality is that there may be little traffic to the website and their only goal is to sell potential sponsorship packages for 12 months.

Not all website listings and sponsorships operate in this way and some may add genuine value. For example, many people still use Yell.com and having an enhanced Yell.com listing may be valuable when attracting local clients. But when offered sponsorship of this type which apparently might be useful in attracting potential clients firms need to do due diligence to ensure there is likely to be a return on investment.

Social media

The number of social networks (Twitter, Facebook, LinkedIn, Google+ etc) is ever-increasing and practices should have at least a basic presence on each major social networking site. Use of social media can range from publishing news items and content to taking part in discussions or engaging with clients.

Each network has its own technologies and audience, but it is important to develop a social media strategy that includes as a minimum:

who in the practice is responsible for social media and interacting with each social network;

what content is to be placed on each network;

if individual lawyers are to use their personal accounts for business purposes; and

ensuring guidelines and a framework is in place.

Visitor conversion and client retention

Once a practice has acquired visitors to its website it must then turn these visitors into clients. Once a firm is instructed, tight risk assessment procedures need to be in place. A dedicated and well-trained initial client liaison team may be the best way to ensure that potential clients are looked after and secured.

Over-worked practitioners are not always the best at converting and then retaining clients. It is beyond the scope of this article to say much more on this, other than to emphasise the importance of enquiries converting to instructions for your firm in meritworthy cases which clients wish to pursue.

Measurement and monitoring

There are various ways to measure effectiveness in marketing and there are no absolute answers to what is right or wrong. There are below set out some suggestions for areas to scrutinise.

Web content should be monitored, likewise the creation of blogs, articles and other content, including content on social media. It is important to have a clear and effective policy to ensure good content is generated which is useful to enquirers and clients. It is imperative it is accurate. Any opinions expressed should, where appropriate, be suitably caveated.

Content must be consistent with a practice's culture and ethos. Non-lawyer as well as lawyer input can be appropriate. Writing does need to express personality, which can be an area of difficulty for lawyers, for whom care and precision of expression rather than personality are more natural.

Some practices, according to size and resource, may employ PR agencies and again measurement and engagement is vital.

With digital agencies content should be monitored, so too the exposure that they gain and the traffic they generate to a practice's website. Agency performance should be scrutinised for evidence of the agency's appetite and quality of new ideas and targeting and general 'nose' for a good idea or opportunity.

Each practice will make its own decisions regarding what it chooses to review and measure, but the following might usefully be considered:

Organic performance:

what search terms a practice is aiming to rank for and progress towards achieving these rankings;

amount of organic traffic to the website;

visitor conversion rates, i.e. the number of site visitors versus the number of enquiries made;

client retention rates, setting an appropriate period or periods for measuring and evaluating this; and

the quality and quantity of links to websites; as mentioned earlier not all links are beneficial.

Pay per click:

keywords, the most relevant search terms for services that are being targeted;

Impressions, how often advertisements are shown;

clicks, how often advertisements are clicked;

cost per click, and what a practice is willing to pay for a targeted visitor; and

cost per enquiry, how many clicks have been paid for to generate an enquiry.

Marketing and financial:

work generation;

cost per enquiry;

cost per converted and retained case;

abandon rates;

billing rates;

risk rates by case category; and

case acquisition cost by type, to take account of any disbursement write offs, both fault and no fault.

Conclusion

It is a regrettable fact of life that such is the intensity and uncertainty of change that even for the excellent there is no guarantee of success. Forecasting is, at best, an educated guess. Time alone will tell how successful a firm's marketing strategy, digital or otherwise, has been.

Following the implementation of LASPO as well as rapidity of technological change, the dynamics and cost of acquiring work are now very different - especially to how they were back in the days when law firms were prohibited from advertising. The fees which can be earned for every type of Personal Injury work have altered, and for some types of case the alteration is dramatic. Changes are compound and cumulative and cover recoverable fees, procedure and process, not to mention increased client competition fuelled by the increasing prevalence of consolidation through the availability of ABSs.

Add to all this the need for most to invest in wholesale new procedures and processes, and training and retraining, and one can readily conclude that these are very uncertain times. However, the vast majority of practitioners are highly motivated and determined people, who will hopefully survive and, indeed, flourish. In order to do so is, though, they need to embrace the brave new world and ensure that the firm is at the cutting edge of digital marketing.

Wednesday, 21 May 2014

Hats off to Guy Tweedy and David Mason, two men whose campaigning on behalf of Thalidomide victims is exemplary.

Tweedy, a Harrogate businessman, has long campaigned on behalf of Thalidomide victims. A couple of weeks ago he continued his tireless representation of those whose lives were blighted by the drug by flying to New York to assist 53-year-old Mark Gizewski.

Mason's daughter, Louise, was born without arms or legs because of the drug. Ever since he has fought for compensation from the Thalidomide's UK distributor, Distillers. His story was told in last week's heartrending and yet inspiring BBC2 documentary, Thalidomide: The Fifty Year Fight. It is a story of remarkable courage and determination as Grünenthal, whose product was responsible for more than 100,000 babies in 46 countries being born with disabilities, fought tooth and nail against paying compensation to its many victims.

Gizeski's case

Gizewski suffered tragically because of Thalidomide. He was born with a number of deformities including dwarfism, scoliosis of the spine, severe deformity to his limbs and sphincter and bilateral radial club hands. He has the mental age of a 10-year-old. His learning difficulties are attributed to his having spent the first five years of his life in hospital.

Gizewski is a full-time wheelchair user. He is also a petty criminal and has served time in New York's Five Points Correctional Facility. Here, says Tweedy, US prison authorities have subjected him to physical violence and intimidation. Adding insult to injury, they have neglected his medical needs. Tweedy believes that Gizewski should be released on permanent parole. As he puts it, in this piece in the Harrogate Advertiser:

"Mark's case is one of the saddest I have ever come across in all my years' campaigning on behalf of fellow victims. Because of his learning disabilities he fell into the wrong crowd, and subsequently found himself on the wrong side of the law. His treatment in prison has been diabolical. His pleas for help and medication to ease his chronic pain fell on deaf ears and the injuries he sustained are truly shocking."

Tweedy previously campaigned for the release from a Filipino jail of William Burton, from Wetherby, who was jailed for 30 years in 1992 after being caught trying to smuggle 12lb (5.4kg) of cannabis out of the country. Burton has a Thalidomide-related condition, but thanks to the efforts of Tweedy, Thalidomide UK and other campaigners was granted a pardon in 2011 by President Benigno Aquino.

Thalidomide in context

To rewind and puts things in context, Thalidomide was manufactured in the 1950s. It was sold from 1957 until 1962. Initially used as a sleeping pill, its use morphed into an apparent panacea for pregnant women suffering from the effects of morning sickness. Tragically, though, it caused many different forms of birth defect.

The drug was withdrawn from sale in 1962 after the link between its use and deformities - including shortened limbs, blindness, brain damage, missing sexual organs and missing internal organs - was conclusively proved. But as if its victims had not suffered enough, the past 50 years have been a different kind of battleground. The German manufacturer of the drug, Grünenthal, only recently managed to issue a public apology to Thalidomide victims.

Tweedy is himself a Thalidomide victim. His work on behalf of other victims has been exemplary. While this week sees him in the United States trying to help Gizewski, earlier this year, in January, he was in Brussels lobbying the EU Health Commissioner. He presently sits on the Council of the estimable Thalidomide Trust. Its work on behalf of Thalidomide victims is excellent.

Mason's courage

As the BBC2 documentary revealed, Mason kept going when others would have crumbled. He knew something was wrong when the doctor in the delivery room came out and asked – "With no congratulations or anything" – if he could have a word. Mason strode past him to see his wife and his baby daughter. As he put it: "And there was just a – torso, with what appeared to be little flowers where her arms and legs should be."

Mason refused a derisory offer from Distillers. It was a deal that was ethically unsound: everyone had to sign it, or no one got anything. Mason's refusal, on principle, meant that the families of other victims took against him. So, too – extraordinarily – did his own solicitors, petitioning to have him removed as Louise's guardian.
But Mason was unbowed. With commendable help from a number of quarters, including the Sunday Times, he pressed on. Eventually Distillers came up with £300m for the 300 children still involved. It was accepted. No wonder Louise calls her father "a hero".

Your support is needed

Tweedy has already begun lobbying the American Ambassador in London, New York State Senators Kirsten Gillibrand and Chuck Schuner, and New York State Governor Andrew Cuomo. He told the Harrogate Advertiser, of his trip to New York, that he is determined "by the time I leave for home he will have a parole date set. Giving up is not is my nature - American prison authorities will come to understand this."

As a personal injury lawyer I can only admire and commend Guy Tweedy's fantastic work. Likewise, I can only stand back in awe of Mason's great and relentless courage.

Thursday, 8 May 2014

Last week I had the honour of taking up the role of President for the Association of Personal Injury Lawyers (APIL), an organisation of which I've been a member of since 1995. I gave my first speech as president at our 2014 conference last Thursday at Celtic Manor which you can watch below as well as read the full transcript of.

As I explain in my address, taking up this role I hope to champion ethical reform to the legal system and continue to fight for the rights of injured people along with all the other members of the association.

Video of John Spencer's Presidential address at the APIL Conference 2014

Thank you all for coming here today. We come together at the tail end of a barrage of reforms and battles which have left lawyers reeling and injured people the losers. But, while there are many in politics, the media and the insurance industry who probably wish we would roll over and give up, we have not given up and I know we won't.

We will stand united because, however much they may be maligned, or undermined or commoditised, injured people still need our help. As long as people are negligent, other people will be injured as a result. These people will always need our help. Who else can do what we can?

Injured people must have an effective voice. We must provide that voice, and no commercial incentive can ever be as inspiring. I know that from my own experience. Comparing my work as a commercial businessman and my work campaigning on behalf of injured people, I know what I find most motivating and gratifying. Being a member of this organisation is about one hundred per cent commitment to injured people - this is what we provide. After all, who else is going to fight for them? It's down to us.

We're having to adapt to survive in this tough new environment. We are adapting, we are surviving, and I know everyone in this room is still just as dedicated, just as determined, to help injured people who need us now more than ever before.

I'm passionate about the rights of injured people, and I know you feel the same. Sometimes it's easy to forget why we do this - why we did all those years of study and training. It's easy to be sucked into the business of the law, especially when our businesses are threatened. It almost happened to me.

When I started out as a trainee I conducted family, care, property, commercial and criminal cases as well as Persona Injury. I got on quite well and somewhere along the line I realised I'd majored on being a businessman. I became embroiled in ambitious plans for business growth and was so immersed in that, and so focussed on the daily work of making a practice grow and making a profit, that somewhere along the line I forgot what really mattered. But then I had an opportunity for a rethink - to stop and take stock. I knew I wanted to build something more worthwhile - a professional, ethical practice which put the vulnerable, the injured person, at the centre.

I'm pleased to say that now I am doing that, and doing it, not by focussing just on the rules and the daily practise of the law, but by pouring energy into what is truly professional, what is ethical and what is right. After all, we all know instinctively what is right, don't we? Politicians, doctors, lawyers, insurers - we all know what is right. What often appears to be difficult, though, is actually doing what is right rather than what is expedient.

Legal Reform

So in the next year I want us to redouble our efforts to persuade everyone who is involved with developing and delivering legal reform to do the right thing for injured people. Being injured by the avoidable fault of another is, in itself, bad enough. What injured people need is justice and care. This is the justice to which they have a right; it’s the mark of a civilised society.

I believe - and hope - the worst of this reform agenda is behind us. The time is now right to drive forward in a new gear, to work at proactive reform to help injured people. We must also continue to strive for the very highest standards of professional excellence so we can all be the very best lawyers we can be. And we must never allow ourselves to forget why we do this, and what APIL stands for in the first place - the legitimate rights of the injured person.

I think we can be forgiven if we have developed something of a siege mentality after recent developments. I know this is the moment to get out of the bunker and get back to focussing on our own campaign agenda, never neglecting our work to help members, and their practices flourish as businesses.

People talk a lot about rights these days - and that's good. So let's remember, injured people have rights. APIL's purpose has always been to fight for those rights, to campaign for fairness in the law, to prevent needless injury, and to make sure our members are the very best lawyers they can be, and to deliver the best service possible.

We have all seen the right to full and fair compensation eroded over recent years, while at the same time injured people are vilified in some media and public forums. The new mesothelioma scheme is a case in point. Why shouldn't people with mesothelioma who are forced to use the scheme because their insurers can't be traced have to give up some of their damages? They would have lost even more if the Government had not passed on administrative savings into the scheme.

Why can't insurers who've taken and invested profits from premiums over decades do the right thing and pass on some of that profit to ensure these people receive 100 per cent of their compensation? It should be socially unacceptable for them even to consider not so doing. Political debate during the passage of the Mesothelioma Bill made it very clear that 75 per cent was about the best 'deal' the Government could get from the insurers. But this shouldn't be about doing a deal. It should be about doing what's right. To deprive someone of any of the compensation to which he is entitled when he probably only has months to live is, in my view, unconscionable.

As I stand here addressing you in Newport, I am reminded of the fierce battle going on about who is responsible for asbestos in schools in this jurisdiction. The UK Government says asbestos management is a devolved issue, while the Welsh Government says it is the responsibility of the HSE. It is fair to say that until someone accepts full and clear responsibility for asbestos in schools in Wales, nothing will be put in place to manage the situation, and that is completely unacceptable.

This issue demands a proactive approach rather than the piecemeal short-term reactive approach we currently have, and it must be a co-ordinated approach for the whole of the United Kingdom. Organisations such as Asbestos in Schools are campaigning tirelessly on this issue and we fully support this work.

I've already touched on the fact that what I find particularly tough to take is the way justice often plays second fiddle to commercial interests. In this, injured people really are at the back of the queue. It seems that being injured - not through some simple accident but because someone just did not or could not be bothered to take proper care - can make a person a pariah in the eyes of the Government, the press, and business - largely, in my view, as a result of the ABI's cynical campaign to undermine the rights of injured people.

I believe it was a sad day when lord chancellors stopped being legally qualified. While there is no doubt that legally-trained lord chancellors haven't always got it right in the past, I find it hard to believe that a lawyer would have allowed the relentless de facto attack on injured people and indifference to access to justice we've seen over recent years. And I really find it hard to believe a Lord Chancellor with a legal background would ever countenance the suggestion that court fees should actually generate profit in civil cases, as has been suggested in a recent Government consultation. I hope this suggestion is allowed to run into the sand: justice for Government profit rather than justice at cost is a line which should not be crossed. The Government should be ashamed of itself for contemplating it.

APIL Campaigning

Turning now to our campaign agenda, we have already made a good start this year with the launch in Parliament of our campaign to help people who suffer psychiatric harm after the death or injury of their loved ones - a very timely campaign, coming as it does in the year of the 25th anniversary of the Hillsborough disaster. The law as it stands puts almost insurmountable obstacles in the way of the people who are already suffering so much and who need help and compensation to help set their lives back on track.

Why does the law only assume there is a close tie of love and affection between spouses, parents and children or fiancés? What about brothers, sisters, grandparents, close friends? Why does the law prescribe that the cause of the psychiatric injury has to be 'shocking', and that the person who has suffered mental harm to be 'close in time and space' to the incident? Society has developed in the 25 years since Hillsborough, as has medical knowledge of mental illness - it's high time the law caught up.

Who could be more vulnerable than some patients in the care of the NHS? So how dangerous would it be to remove the protection the law provides for such vulnerable people? The Medical Innovation Bill, devised by Lord Saatchi, seeks to protect doctors from litigation when they use innovative techniques on their patients.

The Bill is being painted by the formidable Saatchi PR machine as a way to cure cancer through legislation. Anyone losing a loved one to cancer deserves great sympathy, and not least Lord Saatchi, but this cannot be a passport to bad law. What evidence is there that a cure for cancer has not been found because doctors are so afraid of litigation that they won’t use innovative techniques? Doctors are innovative all the time. I'm not aware of a doctor being sued for failing to innovate. This Bill went nowhere as a Private Members' Bill but is now the subject of Government consultation and an enormous amount of PR hype.

It has captured the imaginations of patients who have no idea that it is effectively a license for doctors to play God. Most patients wouldn't realise that there are already many checks and balances in the system to help protect them from any kind of malpractice. The Bill appears to make no sense to those who are informed about the issues involved yet the Government is picking it up and appears to be running with it. We can only wonder why. We are talking to others about what can be done to ensure that patient safety is not jeopardised by this Bill.

But it is just as important to use our knowledge of claims against the NHS to help in our campaigns to prevent needless injury. For example, between 80 and 95 per cent of pressure ulcers can be avoided if simple procedures are carried out by health professionals. Pressure ulcers are painful, debilitating, and completely avoidable in terms of human suffering and expense to the NHS and yet the level to which this issue is being taken seriously in the NHS varies wildly from Regional Trust to Regional Trust. Our campaign will seek to avoid this needless suffering by calling for a uniform system of care across the country.

When the worst happens and people are injured, they must have a fair outcome and we must continue our fight to put an end to shady, unethical deals which make the injured person doubly vulnerable. APIL's tenacious lobbying efforts have started to generate some good results here, and the Government appears to have been persuaded that pre-medical offers in RTA soft tissue injury cases should become a thing of the past. Our job now is to keep up the pressure and see this through to the end, as it continues to be resisted by the ABI at every turn.

Workplace Health & Safety

Workers who suffer at the hands of employers who are more interested in profit than the safety and health of their employees are also incredibly vulnerable. This is now a greater concern following the introduction of the Enterprise and Regulatory Reform Act. At a time when HSE inspections are subject to swingeing cuts, the Act is a charter for rogue bosses who may be tempted to flout regulations in the double comfort of knowing that they are both unlikely to be prosecuted and that it will now be easier for them to avoid meeting their responsibilities to injured workers under the civil law.

We need to start thinking about real deterrents to persuade employers to take health and safety seriously and to understand that a safe workforce is an efficient, motivated workforce. And when employees are injured through no fault of their own, they should have the comfort of knowing that they can make a claim without the fear of losing their jobs, or of being placed under pressure by their employers not to make a claim.

Research we have commissioned has shown us that 80 per cent of those asked think the system for payment of bereavement damages is fairer in Scotland than in England and Wales. This is another issue which we have already broached with the Government and which we will be developing over the next year and beyond. With these issues, it will always take time to achieve results. We know that from experience. We also know that it will be necessary to negotiate, and sometimes to take things step by step. But we will be resolute and tenacious.

We must remember, too, that it is not just practitioners and injured people in England and Wales who are subject to fundamental, far-reaching and potentially damaging reforms. Colleagues in Scotland have been involved in a monumental battle against Government plans to increase the jurisdiction limit of the sheriff court from £5,000 to £150,000.

There is much in the Scottish Government's broad sweep of proposals which we can support, but removing almost all personal injury claims from the Court of Session isn't one of them. There are genuine fears that the Court of Session - the very court which gave us the first instance decision in Donoghue v Stevenson - will effectively end as a court of first instance for personal injury and that the system which remains will not be properly resourced, leaving injured people - again - the losers.

Last year in Northern Ireland, the county court limit was increased from £15k to £30k and we're already hearing that this has decimated the High Court in terms of its quota of personal injury cases, and county court judges are struggling to get up to speed. Injured people and their representatives right across the United Kingdom are facing similar problems so it is really important that we all learn from each other, and that we stand together.

Putting injured people at the heart of everything we do

I spoke earlier about the need for help and compensation. Putting injured people at the heart of everything we do means more than providing them with the financial resources they need to get back on their feet. We must do a lot more to promote the use of rehabilitation, and to defend its use in the face of insurance industry attacks, whenever necessary.

Early rehabilitation, especially in catastrophic injuries, can make a huge difference to a patient's recovery, which should be what everyone wants - lawyers, insurers and the NHS. It is certainly what the injured person wants. Rehabilitation obviously costs money, which is why some insurers are so reluctant to proceed. But the prospect of paying less in damages if the injured person makes a good recovery should provide the necessary incentive, even if the prospect of just doing what is right does not.

And why should the NHS and local authorities, and ultimately the taxpayer, often end up picking up the tab for rehabilitation when the wrongdoer should pay for it? The recoupment of costs in this field is in need of urgent reform which is long overdue. Rehabilitation in hospitals is designed only to get people to the point of discharge, which is a long way short of full recovery. It can then be far too long before local authorities step in to help, by which time the patient’s progress may have stalled. Reform to ensure the wrongdoer pays to get the injured person back on his feet through a combination of both early rehabilitation and compensation has to be the way forward.

In addition to all these areas to which we will now turn our attention we will, of course, see to the end the work we have been doing to improve the efficiency of our system for bringing mesothelioma claims; to improve medical reporting and diagnosis of whiplash claims, and to develop a system of data sharing to help fight fraud.

So, let us do what we do best. Let's make sure our businesses are in the best shape they can be so that we can fulfil a truly unique purpose - helping injured people through our knowledge of the law. Let's make sure injured people receive from APIL members the very highest standard of professional representation.

APIL's accreditation scheme has been running now for 15 years. Only recently it received very high praise from the Legal Services Consumer Panel. It is one of the best accreditation schemes available for lawyers who want to improve the way they work and to help injured people recognise the level of service and expertise they can expect from an APIL member. It is an accreditation scheme to be proud of. It is well supported by our members but I would like to see every member of this organisation getting involved and committing to raising their professional standards even higher.

As an association, we will pursue without apology the right course for the injured person at every turn. We will continue to engage with other organisations with similar interests because we know that together, our voices can be stronger. As individuals we will be the best we can be for the people who need our help.

Professionalism

Professionalism is not about rules and regulations, or even compliance. At its heart it's about integrity and complete commitment, which is never more important than when representing an injured person. We will never cease to make this point at every opportunity. We will never cease to expose every shoddy agenda which puts profit before people.

Being a member of APIL is a badge of honour. Let us wear it with pride.

Tuesday, 8 April 2014

In the summer of 2013 I wrote about Australia's attitude to asbestos. Specifically, I mentioned that on 3 June 2013 the Australian Federal Parliament passed legislation to implement the Asbestos Safety and Eradication bill. In accordance with this, the National Strategic Plan for Asbestos Awareness and Removal 2013 - 2018 (NSPAAR) was released by the Australian Government on 31 July 2013.

I mention this again now because I believe it is high time for Britain to adopt the Australian example.

The Australian blueprint

NSPAAR is the first scheme of its kind. It establishes a national approach to asbestos eradication, handling and awareness in Australia, the aim being to prevent exposure to asbestos fibres in order to eliminate asbestos-related disease once and for all. It is underpinned by annual operational elements which will be approved by the federal minister with responsibility for workplace relations.

All in all, NSPAAR marks an historic step, with Australia becoming the first nation to progress tangibly towards the complete elimination of asbestos-related disease. It is something of which Australians can rightly be proud - and surely it amounts to a blueprint that we in Britain could and should follow?

Report by UK Committee on Carcinogenicity

This seems all the more pressing given the findings of the UK Committee on Carcinogenicity, which published a report in June 2013. The report cited findings that children exposed to asbestos are more vulnerable to the development of mesothelioma than adults. Further, the lifetime risk of developing mesothelioma is predicted to be around 3.5 times greater for a child exposed to asbestos aged five compared to an adult first exposed at age 25, and five times greater for a child exposed aged five compared to an adult first exposed at age 30.

This report motivated a group of MPs to table and support an EDM on 10 March 2013 which welcomed the Department for Education's policy review for the management of asbestos in schools. The EDM also cited the evidence given to the Education Select Committee by a leading epidemiologist that between 200 and 300 people could die each year from exposure to asbestos experienced as a child at school. The motion called on the government to look to Australia and its National Strategic Plan for asbestos as a blueprint to establish long-term strategic policies for the eradication of asbestos disease and to set systems, timelines and processes for the safe removal of asbestos materials from public and commercial buildings - with priority being given to schools.

The seriousness of asbestos exposure appears to be under-appreciated, because the effects of such exposure do not develop until many years later. As such, the current government policies in place are piecemeal and largely involve asbestos remaining in situ with little regard for whether it would actually be safer (and indeed more economic in the long run) for it to be removed. There is often a lack of clarity as to which body is ultimately responsible for asbestos management in the school in question. It is even unclear, for example, which government is responsible for asbestos management for schools in Wales.

The short term outlook and lack of clarity over responsibility mean that the current policies are unsatisfactory, and will put children, and those who work in schools, at risk. There must be a movement from a reactive to a proactive approach. This must be a co-ordinated approach for the whole of the United Kingdom.

As an organisation that promotes safety against hazards, APIL supports the call for:

Clearer and greater central responsibility for tackling the problem of asbestos in schools;

Investment into locating asbestos, and into air sampling to gain necessary information about the scale of the problem. The location of asbestos should be registered and should be made available for those in school. Where appropriate, asbestos can be left in situ or encapsulated, but if necessary - where there is dilapidation, for example - the asbestos should be taken away safely before it is accidentally disturbed and there is a serious risk to health;

Reintroduction of proactive inspections for schools;

Mandatory training and raised awareness of asbestos for those who work in schools;

A long-term plan for phased removal of asbestos needs to be carefully considered. Priority should be given to those schools where the asbestos is in the most dangerous or damaged condition.

The DoE has an opportunity to lead the way to a better future

Let us hope this opportunity is not missed by the present UK government. The DoE can be the start of a significant, necessary and overdue strategy to protect the next generation and reduce risk, starting as it should in our schools and with our children.

Monday, 24 March 2014

An interesting press release came my way today. It's from specialist legal recruiter Laurence Simons. Its subject has resonance not just to lawyers but beyond the legal profession.

According to research conducted among 383 UK lawyers between 7 October and 4 November 2013, of which 57% were male, female lawyers practising in the UK are paid £45,884 less per year than their male counterparts.

The report, which took in both in-house and private practice lawyers, found that men received total remuneration of £160,009 in 2013, compared with £114,125 for women. That's a gap of 29%. The report states that this gap has narrowed by 3% over the past year, from its previous figure of 32%. During this period, men have seen a fall in total remuneration of £2,700 from £162,689, while women have seen a £2,800 rise in total pay from £111,293 seen in 2012.

The pay gap applies to salaries and bonuses

Laurence Simons' report points out that the current gap is evident across both bonuses and salaries. Female lawyers received an average basic salary of £93,248 in 2013, compared to £120,458 for men. In terms of bonuses women received an average of £20,877 in 2013, while men received almost 50% more at £39,551 on average.

The statistics make for intriguing reading - but so too does another facet of the report. It emerges that despite the pay imbalance, satisfaction is almost equal between the genders with 65% of female lawyers stating that they were either 'satisfied' or 'highly satisfied' with the bonus received - only marginally lower than the 66% of men who agreed with this.

For Chris Cayley, EMEA Managing Director of Laurence Simons, there is reason to be cheerful given the results of his company's report. "It is very encouraging that headway is being made to redress the imbalance in pay between the genders," says Cayley. "The UK is, of course, one of the legal centres for legal services globally and it is essential that this disparity in pay is resolved if we are to attract and retain the cream of legal talent."

A pay gap between sexes is baffling

I agree - to a point. I'd say that it is encouraging rather than very encouraging to see the pay gap between sexes diminish. But, in truth, that there is a pay gap at all remains baffling. We live and work in the early 21st century. We live in an enlightened society which rightly does not question equal rights and, indeed, protects them on the statute books. Why, then, is there any kind of pay gap? How on earth can it be justified?

No less intriguingly, Laurence Simons' report also reveals that female lawyers feel more secure in their jobs, at 96%, compared with 86% of males. Against this, slightly more men than women are optimistic about the economy over the coming year (67% of men compared with 60% of women). Overall, optimism is high.

That's good - but how optimistic can we be that next year's report by Laurence Simons will reveal that the pay gap between men and women has shrunk to invisibility? This dismaying truth is 'not very'.

But this is what we should all be aiming for. The glass ceiling has no place in law firms - and no place in society as a whole.

The truth, though, is somewhat different. Anecdotally, the ABI's protestations just don't add up - look around the people you know, and you'll struggle to find someone who’s made a whiplash claim - and more to the point, its campaign to stigmatize whiplash is deeply wrong. Whiplash hurts, and is real: if you've been injured through no fault of your own, and as a consequence suffer from whiplash, you ought to be able to obtain compensation.

But even more pertinently, recent figures released by the Compensation Recovery Unit show that far from being on the rise, whiplash claims are actually decreasing.

Whiplash claims are dropping

The CRU has been collating annual statistics on the number of claims made each year for over 20 years. Its work, which came about as a result of the Social Security Act, started in 1990. A key element of the CRU's work is compulsory reporting: if an individual claims compensation from a compensator, which in the majority of cases would be an insurance company, the insurer or other paying party must at once inform the CRU.

The CRU's stringent reporting requirements make it a very reliable source of data. They provide a remarkable portrait of a society which, far from facing a litigation crisis engendered by 'cash-hungry claimants', is holding steady in terms of claims formally commenced and entering the legal process. David Cameron may have opined that "We simply cannot go on like this", but, in truth, the CRU statistics indicate that it would be no bad thing if we carried on much as we are. Not least when we look at the table below:

Whiplash claims

Motor claims

All claims

2008/09

486,194

625,072

812,348

2009/10

518,563

+ 6.65%

674,997

+ 7.98%

861,325

+ 6.03%

2010/11

571,111

+ 10.1%

790,999

+ 17.2%

987,381

+ 14.64%

2011/12

547,405

- 4.15%

828,489

+ 4.74%

1,041,150

+ 5.44%

2012/13

488,281

- 10.8%

749,555

- 9.53%

1,048,309

+ 0.69%

Spin and reality

Whiplash claims have dropped markedly of late. Confronted by this, insurers claim that the fall in whiplash claims is due to injuries not being referred to as whiplash in CRU1 forms. However, this is misconceived. The fact there has been a fall in RTA claims as well as whiplash claims means that the fall is genuine: if it was simply a reclassification issue, RTA claims would be stable and whiplash falling. In addition, the fact that there has been a 10% drop seems to suggest that the majority of the fall in RTA claims may be due to a fall in whiplash claims.

Moreover, as I mentioned, the CRU1 form is completed by the compensator, which, in all but a few cases, is the insurer. This means any reclassification of whiplash injuries is therefore due to insurer reclassification rather than claimant representatives.

A touch of irony

Two other points are worth making. The insurance industry has been very happy to use the whiplash figures as produced by the CRU in previous estimates to justify its claims about the number of whiplash claims. I am sure I am not alone in finding it more than a little ironic that insurers feel that there are problems with the figures only when they start to fall.

Finally, the whiplash figures reflect each claim where the word 'whiplash' is included in the injury field. As such, if you consider a whiplash claim to simply be for that injury and that injury only, it is likely to be an over-representation of whiplash claims. For example, someone who suffers a broken leg, a broken arm, psychological injuries and whiplash will be included in the CRU whiplash figures.

In fact, work undertaken by colleagues here at Spencers suggests that only 60% of injuries involving whiplash are whiplash only (with 30% being whiplash and other soft tissue injuries and 10% being whiplash with multiple injuries, including broken bones).

The American 19th century essayist and philosopher Ralph Waldo Emerson once said 'Reality is a sliding door'. His words have a great deal of resonance when it comes to whiplash and how it's dealt with by the insurance industry.